Mugging the lawyers

If the famous media gaggers, the libel law firm Carter-Ruck, scourge of Private Eye, thought they’d scored another famous victory suppressing news (these guys are big on bragging) they hadn’t reckoned with social media.

In a few hours American bloggers will start picking up on the story enmasse. What’s Carter-Ruck going to do then? As @ElrikMerlin just pointed out to me ‘this is Streisand Effect in action’ – something which I have blogged about before.

When Uzbek billionaire Alisher Usmanov tried the same trick, and created the same effect, it generated this quote from Boris Johnson (one of those inadvertently whacked by Usmanov’s ‘take-down’ action):

We live in a world where internet communication is increasingly vital, and this is a serious erosion of free speech.

This is what Carter-Ruck did:

The Guardianhas been prevented from reporting parliamentary proceedings on legal grounds which appear to call into question privileges guaranteeing free speech established under the 1688 Bill of Rights.

Today’s published Commons order papers contain a question to be answered by a minister later this week. The Guardian is prevented from identifying the MP who has asked the question, what the question is, which minister might answer it, or where the question is to be found.

The Guardian is also forbidden from telling its readers why the paper is prevented – for the first time in memory – from reporting parliament. Legal obstacles, which cannot be identified, involve proceedings, which cannot be mentioned, on behalf of a client who must remain secret.

The only fact the Guardian can report is that the case involves the London solicitors Carter-Ruck, who specialise in suing the media for clients, who include individuals or global corporations.

This feels like another significant turning point for social media.

My updates throughout today

Nick Clegg has tweeted ‘Very interested concerned about this #trafigura / Guardian story the @LibDems are planning to take action on this’

Trafigura was deleted from trending topics, despite the fact it was obviously the top-trending topic. One minute it was top, the next it had vanished. Twitter’s trend explanations were also absent from any topics relating to Trafigura.

I don’t blame them, British libel laws are notorious for being swingeing, and Carter-Ruck’s efficacy in the area is well-know.

[#trafigua has now come back up trending topics]

@arusbridger #Guardian editor tweets: hoping to get into court today to challenge ban by #carterruck on reporting parliament. Watch this space

We want to put the Streisand Effect to work, and make hashtags #carterruck and especially #trafigura the top trending topics on Twitter. Please include these hashtags in your tweets of the next 24 hours.

“We at Carter-Ruck are proud to be so effective in protecting such deserving clients, and look forward to working just as effectively for the reputations of similarly environmentally well-behaved companies around the globe,” said Carter-Ruck’s new directors of marketing George Monbiot and Julian Assange.

MP, who Guardian is currently prohibited from identifying, said he would ask the Speaker to consider taking action against Carter-Ruck for contempt of parliament.

The media lawyer Geoffrey Robertson QC said Lord Denning ruled in the 1970s that “whatever comments are made in parliament” can be reported in newspapers without fear of contempt.

He said: “Four rebel MPs asked questions giving the identity of ‘Colonel B’, granted anonymity by a judge on grounds of ‘national security’. The DPP threatened the press might be prosecuted for contempt, but most published.”

The right to report parliament was the subject of many struggles in the 18th century, with the MP and journalist John Wilkes fighting every authority – up to the king – over the right to keep the public informed. After Wilkes’s battle, wrote the historian Robert Hargreaves, “it gradually became accepted that the public had a constitutional right to know what their elected representatives were up to”.

Should there be any restrictions placed on the reporting and analysis of what is said (and written) in the Palace of Westminster? I’d argue not, save perhaps for those rare occasions when national security is truly at risk.

Yet this “sensitive” question appears on the Order Paper and the answer will appear in Hansard.

In the anarchic, anything-goes world of the internet, where freedom of speech is a frequently heard rallying cry, injunctions banning publication of anything are unpopular. This one seems to have acted like a red rag to a bull.

There is no doubt that the events of the past day have been profoundly democratic, entirely in keeping with the Bill of Rights’ sweeping away of kingly powers and its assertion of the primacy of openness among the governors of the people. In a parallel universe, attempts to muzzle parliament might be seen as treasonable – but while we’ll never have libel lawyers hearing the axe being sharpened in the Tower, the end result – a chilling effect on the silencers – is just as welcome, and welcomingly just.

Tweet from @wikileaks : Remember the UK press is STILL GAGGED from saying the toxic dumping report is on WikiLeaks HERE: http://bit.ly/v5rDJ

Let’s hope Jack Straw, secretary of state for justice, listens: the trend towards ever-wider gagging orders gives big companies and the rich and powerful yet another way to strangle investigative journalism – as if the overly-restrictive libel and confidentiality laws were not bad enough.

Oil-trading company Trafigura knew that waste dumped in Ivory Coast in 2006 was hazardous.

Trafigura had persistently denied that the waste was harmful but internal e-mails show staff knew it was hazardous.
…
The chemical waste came from a ship called Probo Koala and in August 2006 truckload after truckload of it was illegally fly-tipped at 15 locations around Abidjan, the biggest city in Ivory Coast.

In the weeks that followed the dumping, tens of thousands of people reported a range of similar symptoms, including breathing problems, sickness and diarrhoea.

A search in Google News for Trafigura yielded the Guardian’s piece reporting the order, despite the word never being mentioned. So many people had linked to it using the name of the company that there was no need for the Guardian to break the order themselves, as the search engines determine the subject of a page by analysing those that link to it as much as the page itself.

Tory Politico is reporting that The Independent has removed a story, published on September 17, relating to Trafigura’s dumping of toxic waste in the Ivory Coast. The story is still available through the google cache of the page.

Other members, including Lib Dem frontbencher David Heath and former shadow home secretary David Davis, also raised concerns.

Mr Bercow told MPs he would reflect on the matter, but insisted that the moves to gag The Guardian, which were dropped this afternoon, “in no way inhibited” parliamentary procedure.

“There is no queston of our own proceedure being in anyway inhibited. If the honorable member wants to pursue this as a matter of principle there is of couse, as he will doubtless know, an established procedure of raising it with me in writing,” he said.

In practice, when compared to, well, almost every other country in the history of the world, Britain’s press has flourished. But it has done so without the type of prior right that gives the press in the U.S. its moral force. While the press cannot print anything it wants in either the U.S. or Britain, it is much easier in Britain for an entity to obtain a pre-publication injunction, or for some to win a libel lawsuit, or for parliament to bottle up debate, or for government to prevent journalists from publishing secrets. It is much harder to obtain information from the government. Still, it should be remarked that, believe or not, the Supreme Court of the United States did not formally agree that the government could not prevent the press from revealing “scandalous and defamatory” matter until 1933, in Near v. Minnesota.

It’s not so much that an expressed free press right would have resolved this dispute the right way.We’re still debating the limits of the bill of rights in this country. And in the U.K., the right to report on what someone says in parliament — or on the questions submitted to be answered by a minister of government — is already established in statute. But the existence of a constitutional right would shift the burden away from the interests with relatively less power than the state, the lawyers and the company.

LONDON (AP) — Bloggers and Twitter users thwarted a legal attempt Tuesday to stop Britain’s media from reporting the questions posed by a lawmaker in a parliamentary debate, spotlighting the power of new media to influence public policy.

Before everyone gets too self-congratulatory, does any of this brief flirtation with online interest ever actually change anything? True, right now, lots of people who had probably never even heard of Trifigura will now be reading up on the dumping story, but, come tomorrow or next week, how many will still remember much about it? The bloggers will chalk up a victory and in this case the gagging order was actually lifted, but this is still an on-going case and nothing will have actually changed.

Sites like Twitter are excellent for catching a wave and occasionally rallying a large number of people behind a cause, but it’s yet to become the force for social change that it’s being made out to be. Real issues sadly aren’t resolved in an afternoon and a normally more complicated than 140 characters. If social media is really going to make the impact that it could, then we all need to keep an eye on the issues which we find important and persue them, not just jump on while it’s in the news and let it quietly die. Nag your MP, pester the mainstream media and ask the annoying questions, not just when the issue is in the news, but repeatedly. It’s only by proving that we can stay interested in an issue that change happens, otherwise people will just wait till the dust settles and everything will stay the same.

With the traditional media gagged, the new media had kicked in. That created a story which plenty of trad media outlets and blogs outside the UK could not ignore and started reporting on.

In other words, this kind of censorship is over. And I hope that British Libel law will change as a result. It must now move into the 21st Century and reflect new technology. After all, there is now a new defence. Feel libelled? You can defend your case just as much as the other guy online. Except of course if you are dumb enough not to register @carterruck, for instance.

Labour MP Paul Farrelly told the speaker, John Bercow, attempts by lawyers Carter-Ruck to gag the media could be a “potential contempt of parliament”.

The Liberal Democrat MP Evan Harris said there was a need to “control the habit of law firms” of obtaining secrecy injunctions, and his colleague David Heath told the Commons a “fundamental principle” was being threatened: that MPs should be able to speak freely and have their words reported freely.

On the Conservative side, David Davies criticised the rising use of “super-injunctions”, in which the fact of the injunction is itself kept secret. He said courts should not be allowed to grant injunctions forbidding the reporting of parliament.

Twitterers across the world colored their avatars green to show support for the protestors who took to Iran’s streets after the country’s disputed elections earlier this year. Users of the micro-blogging site might now consider overlaying their avatars with a film of sludge brown as a mark of their spontaneous, collective action to help undermine an attempt by the international oil traders Trafigura to gag a British newspaper reporting on a toxic dumping case.

Jon Snow talked to Guardian editor Alan Rusbridger and asked him what had happened after the publication of this morning’s paper.

He told Channel 4 News: “The blogosphere went berserk about a story that we published on our front page this morning, in which we said we can’t report a story for reasons we can’t tell you.

“After which there was about 16 hours of mayhem out there in the Twitter-sphere; and about an hour before we were due in court we received a letter from the lawyers saying ‘we give in’.

“What has changed was that for the past six weeks we have been faced with an injunction – a so-called super injunction – which not only meant not only could we not tell anyone we had been injuncted, but that we could not mention the company involved either – I think this is a very dangerous phase in English law.”

Tweet from @friendsofdarwin No mention of #trafigura or #carterruck on BBC 10 o’clock News. 5 minutes about racehorse’s retirement. #bbcfail

Libel lawyers Carter-Ruck and Schillings have proved adept at persuading judges that injunctions should now be granted on privacy grounds. Some tabloid newspapers are being served with “a handful” of such orders each week, according to media lawyers. The Guardian has been served with at least 12 notices of injunctions that could not be reported so far this year, compared with six in the whole of 2006 and five the year before.

The motivation is straightforward, according to Mark Stephens, a partner at law firm Finer Stephens Innocent. “As the libel and privacy capital of the world, people are coming here [to London] to bully the media and NGOs into not reporting on their nefarious activities,” he said.

Media lawyers, however, focused on the fact that the rulings of UK courts were not enforceable in the US.

Many of the servers hosting websites such as Facebook and Twitter are based in the US, meaning information cannot be suppressed.

Keith Ashby, head of litigation at Sheridans, said: “The difficulty is that injunctions cannot readily be obtained in the English courts against overseas internet service providers which would prevent them making the information available.”

Mr Ashby added: “If people get a whiff that publication of information has been injuncted in the print media, they are getting more canny about how to find the information on the internet.”

Michael Smyth, head of public policy at Clifford Chance, said: “We should not be surprised that the law finds it difficult to keep pace with technological advance and it is no answer in an era when judges are required to act proportionately to make a blanket order directed at the whole world.

“It is common practice for an injunction obtained against one newspaper to be copied to the whole of Fleet Street so that the market is aware of its terms and also bound by it. That’s the easy bit. What, however, of electronic publishers offshore about whom one knows next to nothing?” he added.

Mark Stephens of Finers Stephens Innocent agreed: “The issue with Twitter and SMS [text messaging] is that injunctions are not enforceable as you can’t stop people talking and in any case the servers which host these websites are in the US and outside the jurisdiction of the English courts.”

He pointed out that the order covering The Guardian was enforceable in England and Wales only, meaning that the Scottish and Irish media could report the parliamentary question.

More broadly, wouldn’t it be a good idea to use this enjoyable moment of consciousness-raising to think about how we might sustain our attention and sort out a few deeper issues out too. Others may have a range of ideas. Here are three modest proposals of my own.

The bellow document is believed to be the secret injunction that would have prevented the Guardian reporting parliamentary proceedings yesterday.

Tweets from @Danoosha Never seen a thin libel lawyer #newsnight #carterruck #trafigura #fb – @nuxnix BBCNewsnight #trafigura Slightly disappointing report I think this is the day where news media becomes less relevant to the real-time media

Excellent blow-by-blow account of the past couple of days. At least they seem to have seen sense. That said, the original Order is pretty useless now, too, so it seems as though they have shot themselves in the foot a little.